Will A Lawyer In New York Anonymously Assist Me In Drafting Pleadings Which I Sign And File With The Court Pro Se?

by admin on July 21, 2010

Periodically, a litigant who is representing himself or herself in court in New York State contacts this author, states that he or she can’t afford to retain an attorney to represent him or her throughout the lawsuit, and asks whether this author, without entering an appearance as counsel of record, will draft or edit certain pleadings for the litigant to sign and file with the court prose. Because such ghostwriting of a prose litigant’s pleadings is irresponsible and unprofessional, may well violate New York’s attorney ethics rules, and raises serious malpractice concerns, this author’s answer invariably is a resounding “no.”

This post seeks to outline the ethical dilemmas and malpractice risks which (i), for the most part, prompt attorneys to decline to provide unbundled legal services (that is, limited representation) in lawsuits in New York State and (ii), in particular, cause attorneys in New York to decline to ghostwrite or ghost-edit pleadings for a litigant to sign and submit to the court prose.

N.Y. Rule of Prof’l Conduct 1.2(c) states: “A lawyer may limit the scope of representation if the limitation is reasonable under the circumstances, the client gives informed consent and where necessary notice is provided to the tribunal and/or opposing counsel.” This attorney ethics rule appears to preclude a New York attorney from providing limited representation (such as by ghostwriting a pro se litigant’s pleadings) unless the attorney signs his name to the pleadings.

As stated, a New York attorney may limit the scope of representation “if the limitation is reasonable under the circumstances.” N.Y. Rule of Prof’l Conduct 1.2(c). Nevertheless, an attorney, by purporting to absolve himself, in a retainer agreement, of liability for not taking actions outside the limited representation, acts at his peril. If a court later determines that the limited scope of the lawyer’s representation of the client was unreasonable, the lawyer may well be held liable for legal malpractice.

It should be noted that some states are more accepting of unbundled legal services in litigated matters than is New York. For example, in Lerner v. Laufer, 819 A.2d 471, 359 N.J. Super. 201 (N.J. App. Div. 2003), New Jersey’s Appellate Division, affirming the Superior Court’s order granting summary judgment dismissing a former wife’s complaint against her matrimonial attorney for legal malpractice, held that an attorney may limit the scope of his representation of a matrimonial client in reviewing a mediated property settlement agreement.

Yet whatever the opinion of other states’ courts may be, the ethical problems and malpractice risks in New York are such that most New York attorneys wisely decline to provide unbundled legal services in lawsuits in this State. In particular, most New York lawyers who are solicited for such work decline to ghostwrite or ghost-edit pleadings for a litigant to sign and file with the court prose. As a result, if you represent yourself in court in New York State, do not expect to find an attorney who, without entering an appearance as counsel of record, is willing to draft or edit particular pleadings for you to sign and submit to the court in your own name.